HomeMy WebLinkAboutThe Rose of Waterloo LP, Encroachment Agreement-01.05.2009 1 -S -0�
Prepared by: David Zellhoefer, 715 Mulberry Street, Waterloo, IA 50703 (319) 291-4327
ENCROACHMENT AGREEMENT
THIS ENCROACHMENT AGREEMENT is entered into by and between The Rose
of Waterloo LP, hereinafter "Company", and the City of Waterloo, Iowa, hereinafter "City",
on -Zct_m_k.a,r./ S; J-4o7 .
WHEREAS, the Company owns the following described real estate (the "Property"):
Parcel "E", being all of Lot Eight (8) and parts of Lots One (1), Two (2) and Three (3) of
Uriah Dubois Addition and parts of Lots Forty-eight (48) and Forty-nine (49) of Morris Case
Addition, of the Southeast Quarter (SE1/4) of Section Twenty-three (23), township Eighty-
nine (89) North, Range Thirteen (13) West of the Fifth Principal Meridian (5th P.M.), in the
city of Waterloo, Black Hawk County, State of Iowa, as shown on the "Plat of Survey" filed
in the office of the Recorder of Black Hawk County, Iowa on August 17, 2006, and
recorded as Document No. 2007004077.
WHEREAS, Company Property abuts up to Franklin Street to the north, Mulberry
Street to the south, Oak Avenue to the east and Utica Street to the west, hereinafter "City
owned street right-of-way".
WHEREAS, 5 of the Company's newly constructed monument pillars were
constructed and currently encroach on City owned street right-of-way as shown on an
ALTA/ACSM Land Title Survey recorded in Black Hawk County, Iowa on October 31, 2008
as Document No. 2009 008989, a copy of which is attached as Exhibit "A", and more
specifically described in attached Exhibit "B".
WHEREAS, Company did not intentionally construct items on said right-of-way but
had few other options for placement due to extensive utilities in this area, and the City is
willing to allow said monument to encroach into said City owned street right-of-way as
shown on attached Exhibit "A" and described in attached Exhibit "B", subject to the
following agreement regarding each party's rights.
THEREFORE IT IS HEREBY AGREED by and between the parties as follows:
1. Affirmation. Company herby recognizes and reaffirms said City owned
street right-of-way.
2. Grants. The City grants Company the right to place and maintain said
monument pillars over said City owned street right-of-way as shown on attached Exhibit
"A" and described in attached Exhibit "B", subject to the rights of the City and/or any
agency to which the City has granted a utility franchise to and for access over, under and
upon said City owned street right-of-way, expressly recognizing and acknowledging that
any damage that occurs to said monument pillars will be the sole risk and expense of
Company and all successors or assigns, including repair or removal expenses.
3. Indemnification. Company, and all successors and assigns, shall protect,
defend, indemnify and hold harmless the City and its successors and assigns, and its
officers, elected officials, employees, and agents from any claim, damages, liability and
expenses (including, but not limited to, reasonable attorneys fees and costs of litigation)
arising out of the use or maintenance of said City owned street right-of-way, including any
damage to said encroachments. This covenant shall survive the termination of this
Agreement.
4. Term of Agreement. The term of this Agreement shall be for so long as
said encroachments are maintained by Company, or any successors or assigns, and said
encroachments continues to exist, and this Agreement shall automatically terminate if said
encroachments are removed. It is understood and agreed that this Agreement may be
terminated by the City of Waterloo, for good cause as determined in its reasonable
discretion, upon 60 days notice and order to remove to Company, or any successors and
assigns, and that Company, or any successors and assigns, agrees to remove said
encroachments prior to the end of the 60-day period. If Company, or any successors and
assigns, fails to remove said encroachments within said period then Company, its
successors and assigns, authorizes the City of Waterloo to remove said encroachments
and assess costs for removal to the Property.
The Rose of Waterloo LP
By: EverGreen Real Estate Development
Corporation 4Its: Ge eral Partn
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By:
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A. McClenahan
Its: President
City of Waterloo, Iowa
Timothy J. y, Mayor
Attest:
Narlert,, City Clerk
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STATE OF MINNESOTA )
COUNTY OF SCOTT ) ss.
This instrument was acknowledged before me on December 16, 2008, by Gregory
A. McClenahan as President of the General Partner of The Rose of Waterloo LP.
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., 406,. DALE A. O'HARA Notary Public
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STATE OF IOWA )
COUNTY OF BLACK HAWK ) ss.
This instrument was acknowledged before me on t L1,��"' by Timothy
J. Hurley and Nancy Eckert, as Mayor and City Clerk, resp ctivelyy, of the City of Waterloo,
Iowa.
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Exhibit`B"
Statement of Encroachments
A-An anchor for the overhead electric transmission line that benefits the subject
property is located on the subject property without any known permissible right.
B-The public sidewalk at the southeast corner of the subject property encroaches onto
the subject property by up to 5.9 feet without any known permissible right.
C—A decorative brick fence corner at the northeast corner of the subject property
encroaches onto the public right-of-way of Oak Avenue by 0.6 feet.
D-A decorative brick fence corner at the northwest corner of the subject property
encroaches onto the public right-of-way of Utica Street by 0.2 feet.
E-A decorative brick fence corner at the north end of the westerly parking area
encroaches onto the public right-of-way of Utica Street by 0.3 feet.
F -A decorative brick fence corner at the south end of the westerly parking area
encroaches onto the public right-of-way of Utica Street by 0.3 feet.
G-A decorative brick fence corner at the southwest corner of the subject property
encroaches onto the public right-of-way of Utica Street by 0.8 feet and onto the public
right-of-way of Mulberry Street by 0.2 feet.
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